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COMMISSION ACTIONS SEPTEMBER 2008

The following are the agenda items from the Commission's regular meeting held September 23, 2008 at Commission headquarters. The Commission's actions are in bold.


** APPROVAL OF AGENDA. APPROVED UNANIMOUSLY, 9-0, AS AMENDED WITH THE INCLUSION OF A SHORT BRIEFING BY DEPUTY HABITAT CHIEF TONY WATKINSON AT THE END OF THE MEETING REGARDING A RECENT SAV PUBLIC MEETING THAT WAS HELD AT VMRC.

1. MINUTES of previous meeting. APPROVED 7-0-2, WITH ASSOCIATE MEMBER FOX AND NEWLY APPOINTED ASSOCIATE MEMBER LAINE ABSTAINING BECAUSE THEY DIDN'T ATTEND LAST MONTH'S MEETING.
[ Audio Item 1 ]

2. PERMITS (Projects over $50,000 with no objections and with staff recommendation for approval). UNANIMOUSLY APPROVED AS RECOMMENDED BY STAFF. PLEASE SEE BELOW FOR MORE DETAILS ON THESE SIX SO-CALLED PAGE 2 AGENDA ITEMS.
[ Audio Item 2 ]

3. CONSENT AGENDA ITEMS. THE COMMISSION UNANIMOUSLY APPROVED THE CONSENT AGREEMENTS DETAILED BELOW AS SO-CALLED PAGE 3 AGENDA ITEMS, AS RECOMMENDED BY STAFF WHEREBY BOTH THE DRIVERS (#08-1195) AND MR. MCWATERS (#05-0504) WERE GRANTED AFTER-THE-FACT AUTHORIZATION TO RETAIN THEIR STRUCTURES BASED ON THEIR AGREEMENT TO PAY TRIPLE PERMIT FEES ($300.00) AND A CIVIL CHARGE OF $600.00 IN LIEU OF ANY FURTHER ENFORCEMENT ACTION AS PERMITTED BY CODE. 
[ Audio Item 3 ]

4. CLOSED MEETING FOR CONSULTATION WITH OR BRIEFING BY COUNSEL. A CLOSED MEETING WAS NOT REQUIRED AT THIS MEETING.
[ Audio Item 4 ]

5. CLARK CRIPPEN, #08-1179, request for Commission reconsideration of the August 26, 2008, decision to approve his after-the-fact request contingent on his agreement to pay a $600.00 civil charge. ON RECONSIDERATION, THE COMMISSION AGREED (7-0-2 WITH FOX AND LAINE ABSTAINING) TO APPROVE MR. CRIPPEN'S AFTER-THE-FACT APPLICATION WITHOUT THE IMPOSITION OF A CIVIL CHARGE. 
[ Audio Item 5 and 6 ]

6. MR. AND MRS. LEO BUTTERBAUGH, #08-1426, request for Commission reconsideration of the August 26, 2008, decision to approve their after-the-fact request contingent on their agreement to pay a $600.00 civil charge. ON RECONSIDERATION, THE COMMISSION AGREED (7-0-2 WITH FOX AND LAINE ABSTAINING) TO APPROVE MR. BUTTERBAUGH'S AFTER-THE-FACT APPLICATION WITHOUT THE IMPOSITION OF A CIVIL CHARGE. 
[ Audio Item 5 and 6 ]

7. WATERVIEW LANDING, LLC, #08-0534. Commission review on appeal by 31 Middlesex County freeholders of the August 12, 2008, decision by the Middlesex County Wetlands Board to approve a revised proposal to construct an 8-foot wide by 210-foot long community pier with a 6-foot wide by 40-foot long pier head and a 41-foot long canoe and kayak launching platform adjacent to their property situated along Harry George Creek in Middlesex County. AT THE REQUEST OF THE APPELLANTS, THE COMMISSION UNANIMOUSLY AGREED TO CONTINUE THEIR REVIEW UNTIL THE NOVEMBER 25, 2008 MEETING. 
[ Audio Item 7 ]

8. POQUOSON MARINA ASSOCIATES, LLC, #07-1569, requests authorization to redevelop the existing Poquoson Marina by replacing and reconfiguring the existing piers, constructing five additional piers, and dredging approximately 28,200 cubic yards of subaqueous material to establish maximum depths ranging from minus five (-5) to minus seven (-7) feet at mean low water, in order to create a 164-slip commercial marina adjacent to their property situated along White House Cove in the City of Poquoson. The proposed project will also include the installation of approximately 2,895 linear feet of bulkhead to replace existing deteriorated bulkheads and rubble/riprap revetment. The project is protested by several residents and oyster planting ground leaseholders. THE COMMISSION UNANIMOUSLY APPROVED THE APPLICATION AS SUBMITTED, FINDING THAT THE REQUEST CONSTITUTED A REASONABLE USE OF STATE-OWNED BOTTOMS AND CITING THE INCORPORATION OF A REASONABLE BUFFER AROUND TIDAL WETLANDS AT THE WESTERN END OF THE PROJECT AND THE MINIMAL ENVIRONMENTAL IMPACTS OVERALL. THE COMMISSION ALSO IMPOSED THE STANDARD DREDGING CONDITIONS AND ASSESSED A ROYALTY IN THE AMOUNT OF $176,886.25, COMMENSURATE WITH THE BOLD OUTLINE ENCROACHMENT OF THE MARINA OVER STATE-OWNED BOTTOM, THE AREAS BEING FILLED BY THE REPLACEMENT BULKHEAD AND THE AMOUNT OF MATERIAL BEING DREDGED. 
[ Audio Item 8 ]

9. ROCKETTS LANDING, #06-0326, requests authorization to install 2,218 linear feet of riprap revetment, and construct a floating debris/ice deflector and an 89 wet slip floating marina with fuel dock at their property situated along the James River in the City of Richmond and Henrico County. Both Wetlands and Subaqueous permits are required. THE COMMISSION UNANIMOUSLY APPROVED BOTH THE WETLANDS AND THE SUBAQUEOUS PERMITS IN ACCORDANCE WITH THE RECOMMENDATIONS OF STAFF. 
[ Audio Item 9 ]

10. MAGNOLIA GREEN DEVELOPMENT, LLC, #08-0260, requests authorization to install a 42-inch intake pipe, with a 5-foot by 7-foot intake screen within Blackman Creek, near Otterdale Road, to be used for supplemental irrigation at the Westham Golf Club within the development in Chesterfield County. The project is protested by two nearby property owners. THE COMMISSION UNANIMOUSLY APPROVED THE PROJECT IN ACCORDANCE WITH THE RECOMMENDATION OF STAFF. 
[ Audio Item 10 ]

11. JIM STANTON, #07-2696, requests authorization to construct a 14-foot wide by 40-foot long, single-slip, open-sided boathouse, onto his recently constructed private, non-commercial pier adjacent to his property situated along the Western Branch of the Elizabeth River in the City of Portsmouth. The project is protested by an adjacent property owner and several nearby property owners. THE COMMISSION UNANIMOUSLY APPROVED THE PROJECT IN ACCORDANCE WITH THE STAFF RECOMMENDATION. 
[ Audio Item 11 ]

12. RANDOLPH T. WELLS, #07-1024, requests authorization to construct an 8-foot wide private pier extending 825 feet channelward of mean low water with a 23-foot by 50-foot open deck area, an 8-foot by 24-foot golf cart passing area, a 7-foot by 38-foot L-head, two (2) 7-foot by 30-foot finger piers, two (2) 5-foot by 30-foot finger piers, four (4) uncovered boatlifts, three (3) personal watercraft davits, a 19-foot by 50-foot wet slip area, and five additional freestanding mooring piles adjacent to his property situated along the North River at 9774 Anchorage Lane near Lone Point in Gloucester County. The project is protested by three nearby property owners. THE COMMISSION VOTED 6-3 (WITH BOWMAN, TANKARD AND LAINE VOTING NO) TO APPROVE AN 825' LONG BY 6' WIDE PRIVATE NON-COMMERCIAL PIER THAT COULD INCLUDE A 6"X 6" BUMPER CURBS, WITH 5-FOOT FINGER PIERS TO CREATE A MAXIMUM OF 2 WETSLIPS INCLUDING 2 UNCOVERED BOATLIFTS, 3 PERSONAL WATERCRAFT DAVITS AND 400 SQUARE FEET OF DECKING FOR GOLF CART TURNAROUND IN ADDITION TO SEVERAL SMALL TRIANGULAR AREAS AT THE HEAD OF THE SLIPS. SUBJECT APPROVAL WAS FURTHER CONDITIONED ON THE SUBMITTAL OF REVISED DRAWINGS REFLECTING THEIR DECISION ACCEPTABLE TO STAFF. 
[ Audio Item 12 ]

13. ENFORCEMENT ACTION: Commission consideration of John Alvey's apparent role in recent unauthorized dredging in Neabsco Creek at Neabsco Properties Inc., located at 16127 Neabsco Road in Stafford County. AFTER CONSIDERATION OF THE INFORMATION PROVIDED BY STAFF, THE COMMISSION DIRECTED THE HABITAT MANAGEMENT AND LAW ENFORCEMENT STAFFS TO CONDUCT FURTHER INTERVIEWS WITH THE PARTIES WHO PROVIDED THE PHOTOGRAPHIC EVIDENCE TO ASCERTAIN THE SPECIFIC TIMES AND DATES OF THE ILLEGAL DREDGING ACTIVITY WITH A FOLLOW-UP REPORT TO BE PROVIDED AT THE OCTOBER COMMISSION MEETING. 
[ Audio Item 13 ]

14. PUBLIC COMMENTS: THE COMMISSION WAS BRIEFED ON THE SEPTEMBER 16, 2008 LETTER THE COMMISSIONER RECEIVED FROM THE SECRETARY OF NATURAL RESOURCES REGARDING WHAT MIGHT CONSTITUTE "UNIQUE CIRCUMSTANCES" THE COMMISSION WOULD USE IN DETERMINING A REDUCED RATE OF COMPENSATION FOR THE CONVEYANCE OF PREVIOUSLY FILLED SUBAQUEOUS LANDS. THE COMMISSION UNANIMOUSLY VOTED TO ASK THE COMMISSIONER TO COMMUNICATE WITH THE SECRETARY TO SEEK HIS INPUT AND GUIDANCE ON THIS ISSUE. 

ALSO, AT THE REQUEST OF DOUG JENKINS, PRESIDENT OF THE TWIN RIVERS WATERMEN'S ASSOCIATION, ASSOCIATE MEMBER CARTER FOX WAS UNANIMOUSLY ASKED TO CHAIR THE COMMISSION'S SHELLFISH MANAGEMENT ADVISORY COMMITTEE.
AND AT THE REQUEST OF A POUND NET LICENSE HOLDER, THE COMMISSION AGREED TO NEXT MONTH CONSIDER ALLOWING THOSE LICENSES TO BE RETAINED IF THEY HAVEN'T BEEN WORKED IN TWO YEARS. CURRENT REGULATIONS PROHIBIT RENEWAL IF A POUND NET IS UNFISHED FOR A YEAR.
[ Audio Item 14 ]

15. PUBLIC HEARING: Proposed amendments to Regulation 4VAC20-720-10 et seq. , "Pertaining to Restrictions on Oyster Harvest" to establish harvest seasons for the 2008/09 fishery and to make permanent Emergency Chapter 4VAC20-720-106. "Public Health and Warm Water Harvest Restrictions." APPROVED UNANIMOUSLY PER STAFF RECOMMENDATION, ALONG WITH AN INDUSTRY REQUEST TO OPEN THE YEOCOMICO RIVER THE LAST WEEK OF NOVEMBER.
[ Audio Item 15 ]

16. PUBLIC HEARING: Proposed amendments to Regulation 4VAC20-620-10 et seq., "Pertaining to Summer Flounder" to establish the commercial harvest seasons, trip limits, and landing periods, and to repeal possession limits. THIS REQUEST FROM INDUSTRY WAS APPROVED UNANIMOUSLY WITH THE MODIFICATION THAT TRAWLERS MAY COME TO DOCK WITH TWICE THE VIRGINIA FLOUNDER POSSESSION LIMIT AND OFFLOAD HALF HERE AND HALF IN NORTH CAROLINA, WHICH WOULD REDUCE INDUSTRY GASOLINE CONSUMPTION. ALSO, THE COMMISSION SHORTENED THE UNLOADING TIME PERIOD FROM 7 A.M. TO 6 P.M., FROM 10 P.M.
[ Audio Item 16 ]

17. REQUEST FOR PUBLIC HEARING (SCUP): to establish landing limits for the commercial fishery during the Winter II period. APPROVED UNANIMOUSLY.
[ Audio Item 17 ]

18. DIMITRIOS HIONIS: Formal hearing on the matter of priority rights to pounds nets located in the Cape Henry area. AFTER A 5 HOUR HEARING, THE COMMISSION VOTED 5-3, WITH ASSOCIATE MEMBERS ROBINS, LAINE AND SCHICK AGAINST AND BOWMAN ABSTAINING, TO REINSTATE POUND NET LICENSES THAT WERE NOT ISSUED PROPERLY TO MR. HIONIS AS A RESULT OF WHAT WAS RULED TO BE A CLERICAL ERROR.
[ Audio Item 18a | Audio Item 18b ]

19. INDUSTRY REQUEST FOR EMERGENCY AMENDMENTS TO REGULATION 4VAC 20-750, pertaining to the setting and mesh size of gill nets, to allow the placement of anchored or weighted gill nets within 500 yards of the beach on the seaside of the Eastern Shore. APPROVED UNANIMOUSLY.
[ Audio Item 19 ]

20. DEPUTY HABITAT CHIEF TONY WATKINSON PROVIDED THE COMMISSION WITH A BRIEF SUMMARY OF THE COMMENTS RECEIVED AT A RECENT SAV PUBLIC MEETING HELD AT VMRC ON THE PROPOSALS TO ESTABLISH CRITERIA FOR DETERMINING WHAT MIGHT CONSTITUTE A BED OF SAV UNDER THE COMMISSION'S EXISTING ON-BOTTOM AQUACULTURE AND OYSTER GROUND LEASING REGULATIONS. BY CONSENSUS, THOSE IN ATTENDANCE AT THE MEETING ASKED THAT THE PUBLIC HEARING ON THIS MATTER BE DEFERRED AND A WORKGROUP BE ESTABLISHEDTO TRY AND REFINE THE PROPOSED DEFINITIONS AND GIVE FURTHER CONSIDERATION TO AMENDING THE SAV CONDITIONS IN THE EXISTING ON-BOTTOM AQUACULTURE REGULATION.
[ Audio Item 20 ]

THESE SO-CALLED PAGE TWO ITEMS WERE APPROVED UNANIMOUSLY:

2A. FOREST LODGE, LLC, #08-0072, requests authorization to construct two (2) span bridge road crossings, four (4) elevated trail crossings, and two (2) 12-inch diameter submerged sanitary sewer lines by open-trench method, each crossing Biscuit Run at separate locations, associated with the Biscuit Run mixed-use development project in Albemarle County. Staff recommends inclusion of our standard in-stream permit conditions and the assessment of a royalty in the amount of $8,145.00 for the road and trail crossing encroachments over 7,755 square feet of State owned submerged land at a rate of $1.00 per square foot, and the sewer lines' encroachment beneath 130 linear feet of State-owned submerged land at a rate of $3.00 per linear foot.

2B. WINCOFA-GGP, LLC and WINCOFA-FRP, LLC, #08-0749, requests authorization to construct a pier supported bridge crossing over approximately 162 linear feet of the Cowpasture River, adjacent to their property in Bath County. The proposed project will include the temporary installation of causeways from each bank to accommodate construction of the proposed bridge. Staff recommends a time-of-year restriction, which precludes all in-stream work from May 15th through July 31st to minimize impacts to the federal Endangered James spinymussel, and that the applicant be required to coordinate with the Department of Game and Inland Fisheries and the U.S. Fish and Wildlife Service with regards to mussel surveys and relocations. Staff further recommends the assessment of a royalty in the amount of $2,301.00 for the encroachment over 2,301 square feet of State-owned subaqueous bottom at a rate of $1.00 per square foot.

2C. CITY OF ROANOKE, #08-1389, requests authorization to replace a 26-foot wide by approximately 120-foot long section from the middle of an existing low-water bridge, which crosses the Roanoke River at Wiley Drive in the City of Roanoke. Staff recommends a time-of-year restriction, which precludes all in-stream work from March 15th through June 30th to minimize impacts to the federal Endangered Roanoke logperch and state threatened orangefin madtom.

2D. ALLEGHANY COUNTY PUBLIC WORKS DEPARTMENT, #07-1752, requests a modification to an existing permit to now construct a temporary 18-foot wide, pier supported detour bridge crossing over approximately 165 linear feet of the Jackson River, along with the temporary installation of a solid fill construction causeway which will extend a maximum of 110 feet in to the Jackson River from its east bank. The proposed causeway will have an approximate 30-foot base width, and will include five (5) 48-inch diameter and five (5) 36-inch diameter culverts to accommodate river flow through the causeway. These modifications are proposed as substitutes for the previously authorized detour bridge/causeway and construction bridge/trestle related to the replacement of the existing Fork Farm Road (Route 727) bridge, which crosses the Jackson River near the Town of Iron Gate in Botetourt County. 

2E. FULCO DEVELOPMENT, INC, #08-0630, requests authorization to construct three (3) 5-foot wide, open-pile, private, non-commercial, joint-use piers, extending between 90 and 170 feet channelward of mean low water, each with an 8-foot by 40-foot T-head platform, two (2) 4-foot wide by 30-foot long finger piers, and two (2) boat lifts, adjacent to the planned River's Edge Landing subdivision situated along Broad Creek in the City of Norfolk. Each of the proposed piers will be shared between two adjacent, riparian lots in lieu of private piers on six individual lots.

2F. COX COMMUNICATIONS, #08-1339, requests authorization to cross the Southern Branch of the Elizabeth River in Chesapeake, approximately 100 feet north of the Gilmerton Bridge (US Route 460), with a 10-inch diameter, conduit-encased fiber optic line using the horizontal directional drill method at a minimum depth of 20 feet below the natural river bed. Recommend approval with a royalty in the amount of $3,000.00 for the crossing under the State-owned river bed at a rate of $3.00 per linear foot. 


THESE SO-CALLED PAGE THREE ITEMS WERE APPROVED UNANIMOUSLY:

3A. DEBRA DRIVER, #08-1195, requests after-the-fact authorization to retain a 76 linear foot timber bulkhead adjacent to her property at 114 Shady Cove Lane situated along Aquia Creek in Stafford County. The applicant has agreed to the payment of a $600.00 civil charge and triple permit fees of $300.00 in lieu of further enforcement action.

3B. JEFFREY MCWATERS, #05-0504, requests after the fact authorization for a 5-foot wide by 163-foot long private, noncommercial, open-pile pier with a 10-foot by 50-foot L-head, an uncovered boat lift, a 5-foot wide finger pier, and associated mooring piles for water access, adjacent to his property in the Linkhorn Oaks subdivision, situated along Linkhorn Bay in Virginia Beach. A draft permit was mailed for execution in July of 2005. The final permit documents and permit fee were never returned, however, so the permit was never issued. The applicant has agreed to the payment of a $600.00 civil charge and triple permit fees of $300.00 in lieu of further enforcement action.



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